PIACBulletin16 - Public Interest Advocacy Centre

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An invitation From the Director To celebrate 21 years of rocking the boat, PIAC and PILCH would be delighted if you would join Roy Slaven and HG Nelson to party in the public interest on Friday, 28 th February, 2003 At the Tattersalls on Elizabeth Street, Sydney From 630pm There will be jazz and champagne, fine fare and fundraising Tickets: $220-00 (inclu gst) or $110-00 (concession) Seating is limited so it is advisable to book soon Call Fabiola Rofael on (02) 9299 7833 to make a reservation or email frofael@piacasnau Tables of 10 will be available I look forward to seeing you in February Reparations tribunal supported Amanda Cornwall, Senior Policy Officer PIAC has called for state and federal governments to review their programs for the stolen generations and to establish reparations tribunals for the stolen generations The call was made at the launch in September of restoring identity, the final report of the Moving forward consultation The call was echoed by project partners, the Aboriginal and Torres Strait Islander Commission, the National Sorry Day Committee, the Human Rights and Equal Opportunity Commission and Northern Territory stolen generations groups The South Australian, Western Australian, Victorian and Queensland governments made public statements about what they are doing to implement the report Restoring identity reveals that many government and church programs since the publication of HREOC’s Bringing them home report, have failed the stolen generations It reflects the views of Indigenous people who were consulted during the project and calls for the adoption of a number of recommendations: • programs to ensure effective access to government and church held personal and family records for Indigenous peoples; • counselling services that target members of the stolen generations effectively and meet their needs, especially at times of family tracing and reunion; • an appropriate forum, or tribunal, for Indigenous peoples to tell of their experience of forcible removal and have it officially acknowledged; • recognition by governments of the distinct identity of the stolen generations and consultations to ensure that programs meet their needs; and • compensation for the harm caused by forcible removal policies, especially where crimes were committed against people in state care The measures recommended offer an important model for all governments keen to demonstrate a commitment to the needs of the stolen generations They are modest and can be achieved with minimal financial cost In our discussions with some state governments, PIAC has been encouraged to discover that some of the recommendations have been implemented The Victorian Government has established a Stolen * p 4 2 PIAC Bulletin No 16 • December 2002
Habeas corpus applications seek release of asylum seekers from indefinite detention Alexis Goodstone, Solicitor and Dr Annemarie Devereux, Senior Solicitor As the Australian Government strengthens its resolve to back an invasion of Iraq, it continues to hold Iraqi refugees in detention centres for indefinite periods, unable to send them back to a country which seems destined to encounter major destruction and destabilisation A significant number of Iraqi and Kuwaiti asylum-seekers have been detained in immigration detention centres in Australia since 1999 Their applications for refugee status have been rejected, all of their appeals have been exhausted and they now await removal The Australian Government has to date been unable to remove them In the case of the Iraqis, this is due to the practical difficulties in returning them to Iraq, including the requirement by a country through which they would transit, that they sign a voluntary consent to return In the case of Iraqi asylum-seekers, many refuse consent; in the case of Kuwaiti asylumseekers, Kuwait will not accept their return In a number of cases before the Federal Court, PIAC will represent some of these refugees, arguing that: • in the absence of reasonable prospects of removal within a set time period, the detention amounts to “indefinite detention”; • Parliament has not authorised such indefinite detention; and • the government must either remove our clients from Australia or release them from detention while negotiations for their removal continue The primary relief sought in each case will be an order in the nature of mandamus, compelling the Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, to remove our clients If such relief can not be implemented “as soon as reasonably practicable”, it will be submitted that the nexus between the lawful purpose for their detention and their custody has been broken and that the court should make an order in the nature of habeas corpus, ordering their release until they can be removed from Australia PIAC will argue that the Migration Act 1961 should be construed in a manner consistent with international human rights guarantees as defined in the International Covenant on Civil and Political Rights (ICCPR) In particular, our clients will seek to enforce the right to freedom from arbitrary detention We will also argue that the “time-limited” interpretation of “pre-removal” detention is the only one consistent with the Commonwealth’s constitutional power to detain persons for the purposes of migration and detention, that is that there is a time limit on the power to detain for the purpose of removal The claims will rely on the recent decision of Merkel J in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1037 (15 August 2002) In this case, brought by a Palestinian refugee in a similar situation, Merkel J found that where there is “no real likelihood or prospect of an applicant’s removal in the reasonably foreseeable future, an applicant’s continued detention is unlawful” Despite the decision, which has important implications, and Mr Al Masri’s release, the Department of Immigration was subsequently able to arrange for Mr Al Masri’s removal to Gaza Notwithstanding the factual conclusion to Al Masri’s detention, the Minister for Immigration appealed the Al Masri decision to the Full Federal Court The Minister argued that there is no time limitation on ‘pre-removal’ detention, ie that the government has the power to detain indefinitely for the purpose of removal The Human Rights and Equal Opportunity Commission (HREOC) intervened as amicus curiae (“friend of the court”) during the appeal, presenting argument on the human rights principles applicable in this area of law The decision of the Full Federal Court is pending The cases raise issues central to the rights of asylum-seekers to receive fair and just treatment Previously, there did not appear to be any limits on the Commonwealth’s power to detain asylum-seekers pending their removal This was the consequence of a broadly drafted statutory regime that had largely been untested in the courts Al Masri and other cases to come afford an opportunity to establish limits on the Commonwealth’s detention power and protect asylum-seekers from a form of detention which is clearly abhorrent to human rights law and principles A report on visits to immigration detention facilities by HREOC’s Human Rights Commissioner Dr Sev Ozdowski was tabled in Federal Parliament on 22 October 2002 The report lists as one of its major concerns the length of time in detention The full report is available on the HREOC website at: http://wwwhumanrightsgovau/ human_rights/idc/indexhtml # PIAC Bulletin No 16 • December 2002 3
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Page 5 and 6: Peace advocate Neri Javier Colmenar
Page 7 and 8: Patient records go electronic Amand
Page 9 and 10: Stephen Lloyd, barrister, prepared
Page 11 and 12: The Indigenous Justice Project - On
Page 13 and 14: Policy Report Dr Patricia Ranald, P
Page 15 and 16: Working at PIAC - on reflection Mus

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